July 19, 2018

Rep. Matt Gaetz to Twitter: You Tell Congress One Thing, But In Court Your Lawyer Says Something Different

Rep. Matt Gaetz questions Nick Pickles, senior strategist for public policy at Twitter, about exactly which rights the company claims to have regarding user data on its network, including what content can be banned and why.

At a House Judiciary Committee hearing examining the content filtering practices of social media sites, Gaetz pointed out a seeming contradiction in claims made by Twitter’s lawyers during litigation and the official policy they tell Congress. The problem arises from what rights the company claims for itself under the First Amendment while also claiming rights as a neutral publisher.

Unfortunately, Twitter’s senior strategist for public policy is “not a lawyer,” so an answer to the Congressman’s legal question was not immediately forthcoming.

REP. MATT GAETZ: Mr. Pickles, is it your testimony or your viewpoint today that Twitter is an interactive computer service pursuant to Section 230(c)(1)?

NICK PICKLES, TWITTER: I’m not a lawyer, so I won’t speak to that. But I understand that under Section 230, we are protected by that, yes.

GAETZ: So-so, if your – if Section 230 covers you, and that section says “no provider or user of interactive computer service shall be treated as the publisher or speaker of any information provided by another,” is it your contention that Twitter enjoys a First Amendment right under speech, while at the same time enjoying Section 230 rights?

PICKLES: Well, I think we’ve discussed the way that the First Amendment contracts to those companies as private companies. We enforce our rules. And our rules prohibit a range of activities.

GAETZ: I’m not asking about your rules. I’m asking about whether or not you believe you have First Amendment rights? You either do or you do not.

PICKLES: I – well, I’d like to follow-up on that because as someone who’s not a lawyer, I think that …


GAETZ: That’s (inaudible). You’re the senior public policy …

PICKLES: Absolutely.

GAETZ: … official for Twitter before us, and you will not answer the question of whether or not you believe your company enjoys rights under the First Amendment?

PICKLES: Well I believe we do, but I would like to confirm with colleagues.

GAETZ: So – so what I want to understand is, if you say I enjoy rights under the First Amendment and I’m covered by Section 230. And Section 230 itself says “no provider shall be considered the speaker” – do you see the tension that creates?

PICKLES: Yes, but I also see that Congress we’ve worked with previously to identify why it’s important to remove content that is of child sexual abuse. And why it’s important …

GAETZ: OK well let’s – let’s explore some of those extremes then. I know Twitter would never do this, I’ll disclaim that. But could Twitter remove someone from their platform because they’re gay or because they’re a woman?

PICKLES: Well we would remove someone breaking our rules, and that behavior is not prohibited under our rules.

GAETZ: So, it’s your contention that Twitter does not have the ability then to remove someone because they’re gay or because they’re a woman?

PICKLES: I have to say that context is not part of the context of whether they break our rules.

GAETZ: OK, well Jared Taylor is a horrible human being who you’re currently litigating with. But that litigation seems to – the transcript from it seems to have some tension with what you’re telling Congress.

The cord in that litigation asks the question, does Twitter have the right to take somebody off its platform because it doesn’t like the fact that the person is a woman, or gay?

And the response from the attorney for Twitter was, the First Amendment would give Twitter the right, just like it would give a newspaper the right to choose to not run an op-ed from someone because she happens to be a woman. Would Twitter ever do that? Absolutely not, not in a million years.

Does the First Amendment provide that protection? It absolutely does. So was your lawyer correct in that assessment? Or were you correct when you just said that that would not be permitted?

PICKLES: Well I’m not familiar with the facts of that case. And you can appreciate I can’t comment on ongoing litigation. But this is absolutely a critical public policy issue; one that’s important we debate.

Because as our companies seek to reassure you in this committee of the way we take our decisions in a neutral way, and not take into account political beliefs, I think that the fact our rules are public and that we are taking steps to improve the transparency of how we improve the enforcement of those rules are important steps to take.

GAETZ: Right but – it is not in service of transparency if your company sends executives to Congress to say one thing that you would not have the right to engage in that conduct. And then your lawyers, in litigation say precisely the opposite. That serves to frustrate transparency. But my time is expired.

Shortly after in the hearing Gaetz clarified what he meant:

GAETZ: I’ll begin by associating myself with some of the comments from Mr. Lieu and Mr. Raskin. When they indicate that the government should not foist upon the technology community, the, you know, the overregulation of the government, I completely agree.
My question is, when you avail yourself to the protections of Section 230, do you necessarily surrender some of your rights as a publisher or speaker? The way I read that statute now, it’s pretty binary. It says that you have to be one or the other. You have to be Section 230 protected, or you’re a speaker with a full complement of your First Amendment rights.

I’m cool with that. I would love you guys to make the choice. I come from the libertarian-leaning segment of my party. I just think it is confusing when you try to have it both ways; when you try to say that, you know, we get these liability protections but, at the same time, we have the right to throttle content. We have the right to designate content.

And — and, in the most extreme examples, when you have a Twitter attorney saying in court, we would — we would never do this, but we would have the right to ban people based on their gender or their sexual orientation. So, I wanted to clear up those comments.

Originally posted here.